Shackleford v Nursing and Midwifery Council [2014] EWHC 1112 (Admin)

Case No CO/14506/2013

[2014] EWHC 1112 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

The Courthouse

1 Oxford Row

Venue Leeds

Date Friday, 21st February 2014

West Yorkshire

LS1 3BG

B e f o r e:

HIS HONOUR JUDGE JEREMY RICHARDSON QC

(Sitting as a Judge of the High Court)

Between

SHACKLEFORDClaimant

Between

NURSING AND MIDWIFERY COUNCILDefendant

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Mr Duffy (instructed by Royal College of Nursing) appeared for Claimant

Miss Hall (instructed by NMC) appeared for Defendant

J U D G M E N T

HIS HONOUR JUDGE JEREMY RICHARDSON QC:

[1]On 5th September 2013 the Conduct and Competence Committee ("the Panel") of the Nursing and Midwifery Council ("NMC") found Simon Shackleford ("the appellant") was unfit to practise as a nurse and by reason of that made a striking off order with effect from 9th October 2013. The appellant was struck off the register of nurses. The decision was made pursuant to Article 29(5)A of the Nursing and Midwifery Order 2001 ("the 2001 Order"). There is now an appeal to this court upon two separate grounds: the first relates to the decision of the Panel upon impairment; the second relates to the sanction imposed by the panel.

[2]The circumstances of this appeal are as follows.

[3]The NMC is the statutory body for the regulation of nurses and midwives in the United Kingdom. It maintains a register of all nurses and midwives. The NMC is required to establish and keep under review effective arrangements to protect the public from persons whose fitness to practise is impaired. This is set out in the 2001 Order and the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 ("the 2004 Rules").

[4]Article 22(1) A of the 2001 Order provides as follows:

"22(1) This Article applies where any allegation is made against a registrant to the effect that- (a) his fitness to practise is impaired by. (i) misconduct. (ii) lack of competence. (iii) a conviction or caution in the United Kingdom for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence. (iv) his physical or mental health, or. (v) a determination by a body in the United Kingdom responsible under any enactment of the regulation of health or social care profession to the effect that his fitness to practise is impaired, or a determination by a licensing body elsewhere to the same effect."

In the context of this case Article 22(1) (a)(iii) is relevant.

[5]The appellant is aged 45. The facts giving rise to the appellant's appearance before the Panel were these. During 2011 he was employed as a Band 5 registered nurse by Mersey Care NHS Trust. On 11th November 2011 at Chorley Magistrates' Court the appellant was convicted of assault, contrary to section 39 of the Criminal Justice Act 1988. He was sentenced to a community order comprising of an unpaid work requirement and supervision by the probation service. He was also ordered to pay £85 costs.

[6]The victim of the crime was the appellant's partner who, at the time of the assault, was 35 weeks' pregnant. She was punched or hit in the face, which caused her to suffer a minor wound to her lip and facial bruising. That assault took place on 30th October 2011, when the appellant was at home with his 7-year-old daughter. He was off work at the time on sick leave. An argument erupted and the assault occurred with the child observing nearby. It was upon any analysis a disgraceful and shameful incident.

[7]There is, it is right to observe, no evidence of previous domestic violence. It also appears that the appellant, at that time, was suffering from a depressive disorder, as revealed in a report of Professor Gilbody which was 1 year out of date, when the hearing before the Panel occurred. That report was also written, not for the purposes of the hearing before the Panel, but litigation relating to a claim made by the appellant against his former employer.

[8]The Panel was required to make a decision on impairment. This arose from the fact that the appellant referred himself to the NMC. He was also reported by the police and his employer. It is right to observe the appellant's employer has dismissed him in any event. Proceedings were commenced by the NMC and it was decided to convene the Panel to determine whether by reason of the conviction the appellant's fitness to practise was impaired. There was a single charge to reflect this and the facts, which I have briefly recounted, were admitted before the Panel.

[9]It will be appreciated there are in fact three stages to the hearing before the Panel which are reflected by the following questions. First, the fact-finding stage; what are the facts? Second, in the light of the facts as found, is there an impairment to practice? Third, if so, what is the correct sanction?

[10]An appeal to this court is by way of rehearing. I may allow an appeal where the decision of the Panel was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the Panel. I am very conscious of two decisions in particular of this court about appeals of this kind, namely Shiell v GMC

[2008] EWHC 2967 (Admin)

and Threlfall v General Optical Council

[2004] EWHC 2683 (Admin)

. There is also further jurisprudence upon this to which I need not refer.

[11]The following three points emerge:(i) The rehearing is in reality a review of the evidence and other material before the Panel.

(ii) A disciplinary body of a profession possesses a level of expertise about that profession in terms of professional practice and the gravity of failings.

(iii) In the light of this the court pays respect to the decision of the professional disciplinary body about such matters, but that does not mean it slavishly adheres to its views. Let there be no misunderstanding, if this court forms the view that the Panel was wrong or unjust due to procedural or other irregularity, this court will say so and act accordingly. The Panel was and is a specialist professional Tribunal, which inevitably possesses an understanding of what is expected of professional nurses. It is my task to decide whether upon appeal it was wrong in this case.

[12]The Panel had a volume of material before it, including a report from Professor Gilbody of 30th November 2012. He is an expert in psychiatry. He examined the appellant on 14th August 2012. The disparity in time between the examination and the hearing before the Panel will be immediately apparent. The psychiatric report was written for the purposes of civil litigation between the appellant and his former employer. The report is lengthy and can be reduced, at least for present purposes, to these points:(i) The appellant had long-standing work related stress;

(ii) The appellant had a worsening clinical depression which was moderately severe;

(iii) Cognitive behavioural therapy was recommended;

(iv) The appellant should only return to work if there was evidence of significant clinical improvement; and.

(v) The appellant felt victimised.

[13]Professor Gilbody refers to work related problems connected to assertions of errors whilst at work. In fact all of that has come to naught. There was in fact no professional impropriety on the part of the appellant.

[14]In addition to that report there were letters from the appellant's general practitioner revealing depression in 2011 due to pressure at work. Finally, there was a further letter from the general practitioner, which was presented to the panel. This was received very belatedly by the appellant's legal advisers. It reads as follows:

"[The appellant] presented with the effects of stress due to disciplinary action at work back in June 2011. This has developed over time into full blown depression with insomnia, agitation, lack of motivation, suicidal ideas and lack of confidence and with persistent remuneration and mood swings. He was initially started on Mirtazapine and referred to community mental health on 2nd February 2012. He has subsequently been changed to Setraline and was referred to mental health in July of this year due to a progressive deterioration in his condition. The initial problem was triggered by perceived bullying at work. The ongoing problem is due to the fact that he is unable to come to terms with the loss of his career due to the conviction for assault (which was probably in no small part due to ongoing psychological stresses) and also the duration of time it has taken for all these to be resolved. He currently continues to suffer from low mood, lack of motivation, lack of confidence and I have had to give him some diazepam to enable to get on the train to come to the hearing in London. He is unlikely to be fit for work until the ongoing issues are resolved."

That letter was written on 5th September 2013. Despite, as I understand it, requests for an earlier update of the position of the appellant.

[15]I shall come to the submissions that were made in a moment. However, it is of importance to note, given the facts were admitted, that there was no bundle akin to, what is called, a "reflective piece". Such a document or group of documents might have been helpful to the appellant, setting out:(i) A statement from the appellant (noting that no cross-examination could in fact take place in this case due to the appellant's mental health);

(ii) An up-to-date report or even a letter from Professor Gilbody as to the current psychiatric state of the appellant;

(iii) A report from a therapist or general practitioner or indeed others as to how the appellant was endeavouring to remedy his problems in a little detail;

(iv) A report or even a letter from the probation service revealing what work had been undertaken and how, if it be the case, he had successfully completed his period of supervision;

(v) Testimonials from any person whom it might have been thought was relevant; and,

(vi) [Perhaps of some importance in this case] A witness statement from the appellant's wife, revealing how matters were at home and what she knew about the appellant's attitude to what he had done wrong, in particular the conviction. Nothing like that was before the Panel at all. That was not only unfortunate but, in my judgment, reflected a serious deficiency in the appreciation of the reality of the appellant's predicament.

[16]What were the submissions of the parties in relation to first impairment and second sanction? I turn to impairment first. The NMC called attention to the conviction and the circumstances, serious as they were, of the assault on the appellant's partner. It was asserted that no steps had been taken to remedy that situation. It was acknowledged however that that would be very difficult to do that when a conviction is involved.

[17]It was further emphasised that public confidence in the profession must be maintained and that individual member of the profession must not bring it into disrepute. It was argued that there were breaches of the Standards of Conduct Code of 2008, and in particular breaches relating to what is set out in the preamble, paragraph 49, and paragraph 61.

[18]On behalf of the appellant it was argued that this was an isolated incident; and there was a mental health background in the way that I have briefly described. This stemmed from stress at work. Attention was called to the psychiatric report revealing the depressive illness which at the time of the assault was undiagnosed. It was emphasised that the appellant was being treated, he felt, badly by his employers at the relevant time and again, it was emphasised that the appellant not only has no previous convictions, but is not a habitual wife-beater or a man who indulges in domestic violence. This, it was advanced, was a "one-off ".

[19]The Panel's view can be encapsulated into the following points upon impairment. They formed the view and, in my judgment, were perfectly entitled so to do, that the appellant had breached standards expected of a nurse. There was a breach of the fundamental tenets of nursing.

[20]It was asserted that patients in the past had been exposed to unwarranted risk. This observation plainly stemmed from what is to be found at page 37 of Professor Gilbody's report, when he reported about the problems relating to his employment. That, in my judgment, was an unwarranted observation on the part of the Panel. In the result, as I have already explained, all of that has come to naught. It must not, and should not have been, held against the appellant. However, the Panel went on, and this is of greater importance; there is a risk, if the appellant is placed in a stressful situation again, the situation could well be replicated.

[21]The Panel took the view the circumstances were serious and the profession had been brought into disrepute. They were of the view that the behaviour was capable of remediation but there was no evidence before the Panel of remediation and therefore there was a risk of repetition. Consequently, there was a finding of impairment. In relation to sanction the following submissions were made.

[22]On behalf of the NMC attention was called to the Indicative Sanctions Guideline. It was asserted the reputation of the profession is more important than the fortunes of any individual member, and it was emphasised that where violent conduct is involved, striking off may well be necessary.

[23]The aggravating feature of this case, it was argued, was the domestic violence in front of a child. It was firmly rejected by the panel that the case should be transferred to the Health Committee for assessment and adjudication by them.

[24]On behalf of the appellant the following submissions were made. It was emphasised before the Panel that it should ask itself whether it was really necessary, and in the public interest to order striking off, given that there was undiagnosed depressive illness. Furthermore, this was an isolated incident, and the appellant had a good nursing history between 1999 and when he ceased to be a nurse in active practice. The appellant had voluntarily taken time-off work in an endeavour to resolve his problems.

[25]The view of the Panel can be distilled in the following way. The purpose of the sanction was to protect the public and not punishment. I interpolate to indicate that that is a very important point to remember. Further, the Panel went on to emphasise that public confidence needed to be maintained in the profession and that a sanction must be reasonable, proportionate and appropriate. It was appreciated, and expressly stated by the Panel, that the violence took place outside the professional context and there was no evidence at all of any patient being harmed by what took place. However, and this is a very important point, their view was that there is a risk of repetition in the factual matrix of this case. Their assessment was that the conviction brought the profession into disrepute and that a sanction must be imposed. They then went on to consider the matter in the correct sequential order, that is to say:(1) considering whether any order was necessary to start off with. They took the view that would not be right to decline to make an order.

(2) They then asked whether a caution order was appropriate. They plainly and, indeed, rightly, in my judgment, ruled that out.

(3) They additionally ruled out whether this was a case whereby conditions of practice would meet the justice of the situation. Again, in my judgment they were entirely right to rule that out.

[26]The issue in this case, and eventually I think it has been accepted by the appellant, the real issue was between whether a suspension was just and proportionate in all the circumstances, or whether there was a real need here to strike off the appellant.

[27]In relation to suspension, that is appropriate where an individual has insight and appreciation of their own conduct undermining public confidence in the profession. In this particular case the view of the Panel was that there was no evidence of remorse, there was more importantly no evidence of remediation. It is right to call attention in this regard to the Indicative Sanction Guidance to Panels of the NMC. At paragraph 2 a broad principle is set out coupled with the purpose of the guidance:

"This guidance is an authoritative statement of the NMC’s approach to sanctions. It is not an alternative source of legal advice. When appropriate, the legal assessor will advise the panel on questions of law, including questions about the use of this guidance and the approach it should take. Panels must always have in mind that each case is different and should be decided on its unique facts and merits."

I particularly call attention to the paragraphs relating to a striking off order. Under the heading of "Key Considerations":

"Key considerations 74.1 Is striking-off the only sanction which will be sufficient to protect the public interest? 74.2 Is the seriousness of the case incompatible with ongoing registration (see paragraph 70 above for the factors to take into account when considering seriousness)? 74.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register? 75 This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional, which may involve any of the following (this list is not exhaustive)."

I then turn paragraph 75.5:

"Any violent conduct, whether towards members of the public or patients, where the conduct is such that the public interest can only be satisfied by removal."

And 75.8:

"Convictions or cautions involving any of the conduct or behaviour set out."

[28]I simply call attention to paragraph 70 in relation to the issue of seriousness. That particular paragraph is rather more designed to deal with a situation where a patient is involved rather than the situation here where the violent criminal conduct was unrelated to a patient, but a member of the appellant’s family.

[29]The appellant advances five grounds of appeal, which I feel can be further refined:(i) It is argued that the Committee misunderstood and/or conflated impairment to practice by reason of the appellant's medical condition and not the conviction;

(ii) It is argued that the Committee fell into error when they formed the view there had been no remediation; and

(iii) In all the circumstances the sanction was wrong.

[30]The respondent has argued that the impairment was due to the conviction, not any health reasons. The psychiatric report, antique though it was, formed merely the backdrop to the conviction. It is further argued it is necessary to pose the question: what evidence of remediation was there before the Panel? It is argued there is only one answer to that: there was no proper up-to-date evidence. Finally, there was no proper character evidence; and, there was every risk, unless remediation was clearly evidenced, that violent conduct might, in the light of the reports, resurrect itself.

[31]In my judgment, this case is really about the question of sanction. Mr Duffy has argued that the process before the Panel was flawed and this amounted in effect to an irregularity. He made submission in relation to the case of Brennan v Health Professions Council

[2011] EWHC 41 (Admin)

. In my judgment those submissions were misplaced. That case was factually different to this. I accept however that the Panel must produce legally adequate reasons for a decision.

[32]Turning therefore to the question of impairment. The situation here, so it seems to me, is as follows. First, the appellant, it would seem, had been suffering from a long standing clinical depressive illness. This may have stemmed from stressful situations at work. Second, there is no evidence either before the Panel or this court that that situation has been effectively remedied or there has been an effective endeavour to remedy the situation. The high water mark on this is the report of Professor Gilbody, considerably out of date now, and considerably out of date at the time it was presented to the Panel. There is simply a letter from a general practitioner of a general kind and no real evidence as to what action is being taken to actively remedy the problems that gave rise to the conviction. Third, plainly the assault by the appellant upon his partner when she was 35 weeks' pregnant, in front of their 7-year-old daughter, was and remains a very serious matter. It is important to remember not only the nomenclature of the crime but the factual circumstances of it. Fourth, given that the underlying problem is the appellant's mental state giving rise to what is asserted to be his uncharacteristic conduct, there is plainly a need for remediation which, if not undertaken, means there is a real risk of repetition. Fifth, coupling this with the bare facts of assault, the reputation of the profession of nursing has plainly been brought into disrepute. Sixth, by reason of the conviction, coupling it with no proper evidence of remediation, and thereby a real risk of repetition of the serious violent behaviour, there is thereby impairment by reason of the conviction. I see absolutely no problem or irregularity as to the approach of the Panel upon the issue of impairment. The real issue on appeal surrounds the sanction imposed by the panel.

[33]In relation to sanction, Mr Duffy submits that the Panel fell into error by not fully appreciating the undiagnosed clinical depression which was the foundation of the violence. The appellant, he argues, was not a habitual wife-beater or a man of violence. This was a one-off episode of violence in the midst of psychiatric disorder which precipitated the outburst. He submitted this was, and remains, capable of remediation. Consequently, there was insufficient here to warrant the striking off order and at worst, he argues, this should have been a case for suspension, for a period of 12 months (which is the maximum). At that stage, if the appellant was still unwell, the Fitness to Practise Panel would be engaged and either continue the suspension or indeed even consider striking off at that stage, depending upon the medical evidence before the Panel. If, on the other hand, the appellant was fit and well, there would be no need for any form of action. The point he makes is that is a decision, a medical decision, which should be made at that stage much later than now. In terms of sanction, the only sanction there should have been was a suspension. The appellant asserted, through Mr Duffy, that he is stuck in a loop and remediation will occur in due course when these proceedings and the other problems that the appellant faces are behind him. Striking off, he argues, is disproportionate and wrong.

[34]Miss Hall, on behalf of the NMC, calls attention to the absence of a "reflective piece" or analogous documents. She submits the conviction and the facts giving rise to it, serious and shameful as they are, brings the profession into disrepute and breaches the fundamental tenets of the profession of nursing. This was a conviction for violence, she emphasises. There was not a jot of evidence of any real substance to reveal remorse, remediation or insight. Even if there had been, the judgment of the Panel, she argues, would have been the same. So, even if I indulgently accepted the proposition of Mr Duffy, that material could be properly presented, the judgment of the Panel is, she argues, highly likely to have been exactly the same. This sanction was not, she submits, excessive or disproportionate.

[35]The public interest, and the protection of the public is part of that, is of overarching importance. Punishment is not the loadstar. Public confidence in the standards and reputation of the profession must be maintained. I echo what has been stated before that the standing of the profession in the public consciousness is much more important than the fortune of individual members. I am also very alive to what I stated earlier, that the views of a professional Tribunal should be respected by the court and not lightly cast aside.

[36]In this appeal there is not a shadow of doubt the profession of nursing has been brought into disrepute by the conduct of the appellant in relation to the conviction. The only real evidence of remorse was the guilty plea, but there was no well constructed evidence of contrition, or an understanding of the situation, or of remediation. Suspension might, not must, be appropriate when an individual provides powerful mitigation and displays an understanding of how his conduct has affected the public reputation of the profession. Furthermore, there would need to be clear and positive demonstration that the appellant was doing all he could to remedy the underlying problem or put right what he had done wrong. In the end, it is a question of judgment by the Panel in an individual case. In my judgment what should have been done, if the appellant had any chance of advancing a proper mitigation was to do that which I set out earlier in this judgment (see paragraph 15 supra).

[37]I am completely unable to say the Panel was wrong. I appreciate there was a foundation for the cause of the violence, namely the mental illness. The conviction, in particular the facts giving rise to it, was a serious matter and that alone undermines public confidence in the profession. A conviction for violence of any kind is a very serious matter and has to be addressed by a disciplinary panel of any profession with great care. The facts behind the bare conviction are also of immense importance.

[38]The starting point in this case is the conviction for violence and the shameful facts giving rise to it. A very powerful mitigation would need to be advanced revealing the appellant to be remorseful; had endeavoured; and continued to endeavour, to remedy his problem. Additionally, that he possessed an insight to all of that and how it impacted upon the standing of the profession. That was not done in this case. Even if it had been, and I shall assume for the sake of argument that it had, the result would, in my judgment, have been the same. The shameful facts are the real problem in this case for the profession of nursing. A powerful mitigation might have formed the building block or foundation for an application to be re-registered in 5 years, but it simply does not meet the seriousness of the situation of this conviction and more importantly, the facts behind it. As it is, I discern no error of reasoning by the Panel given the material they had before them. There is no new material before me. Even being indulgent to the appellant and assuming it to be available, it would in this case have made no difference. The interests of the profession of nursing and the maintenance of those high standards are more important than the fortune of this individual member. I appreciate this will be a hard blow for the appellant, but he was a member of a profession that demands high standards of personal behaviour. It is a caring profession. He behaved with personal violence in shameful circumstances in front of a child, resulting in a criminal conviction. It is conduct that might be repeated unless the underlying cause is addressed. That is unacceptable conduct for the profession of nursing. The profession must maintain high standards of personal behaviour and has done so in this case without excess and within proportion.

[39]This appeal is dismissed. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Pausing for one moment, did you manage to get a reasonable note of all of that? As you know there is a question mark whether the recording equipment is actually recording what I say. MISS HALL: I have done, I have taken quite a detailed note. I believe Mr Dixon, who sits behind me, would also have taken a detailed note.40. Mr Duffy, did you get a reasonable note? MR DUFFY: Yes, indeed. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Yes, Miss Hall. MISS HALL: I am now making an application for costs based on the determination and the judgment you have just handed down. I believe you do have a copy of the costs schedule I have submitted. If not I do have a spare copy. HIS HONOUR JUDGE JEREMY RICHARDSON QC: I think one was, but I have not got it in front of me, and another one would be very helpful. Thank you very much. Yes? MISS HALL: My Lord, perhaps if I give you a brief moment to glance your eyes. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Certainly. Let me have a look. MISS HALL: I must stress, this is my costs alone save for the administrative support which you see at the bottom of the first page. HIS HONOUR JUDGE JEREMY RICHARDSON QC: So the bottom line is £3,683.07. MISS HALL: Yes my Lord. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Very good. Let me have a look at how it is broken down. MISS HALL: Of course. (Pause).

41. Mr Duffy, have you any observations to make about this? MR DUFFY: No. HIS HONOUR JUDGE JEREMY RICHARDSON QC: I did not think you could. Thank you very much. There will be an order of costs in the sum claimed. Unless there is anything else, thank you both very much. MR DUFFY: Thank you for your consideration. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Thank you very much for also the skeletal arguments that helped to refine the issues. Can I say Mr Duffy, and I believe your lay client is still in court, I understand at a personal level how devastated he must feel. I really understand that point. That however is not the point in terms of the case. MR DUFFY: Yes. HIS HONOUR JUDGE JEREMY RICHARDSON QC: It is of course a matter for him what he does in the future. I am not here to give him legal advice, nor can you for 5 years down the road. Whether in 5 years' time he is in the right place to apply to be re-registered remains to be seen. But the only point I would say is this. The building blocks that could have been in place for the appeal hearing, albeit it would have made no difference, can still be built now. MR DUFFY: Yes. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Whilst in no way suggesting what the NMC should do in 5 years' time, because none of us can predict how things will be, but if he has the slightest hope of coming back into the profession after a period of time, he needs to get the building blocks established. MR DUFFY: Absolutely. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Whether it works I cannot foretell. But I am convinced that unless he presents those building blocks there will be no chance. MR DUFFY: My Lord, I completely agree and the hope and anticipation is that when the civil proceedings end this year a rehabilitation program and to perhaps another area of the medical profession can take place and use that as the foundation, subject, as we note, of the medical condition in due course. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Precisely. That is for the future. No doubt you will give him appropriate advice. He should not use the observations that I have made for any inappropriate purpose. But I simply trust that if he is going to make an application, that he does it with a proper foundation. At the time that is when he will need advice. That is for the future. That must be a matter for him and I do not want to raise false hopes. In final analysis it is a matter for the profession and not me. MR DUFFY: Thank you for those words. HIS HONOUR JUDGE JEREMY RICHARDSON QC: I feel sorry on a personal level, but as the Master of the Rolls said in one of the cases: the interests of the profession are rather more important than any individual member of it. You are a member of the profession, as is Miss Hall. You understand that. I was once a member of your profession - I understand it too. But at a personal level it is still very hard for him. I do hope that things improve for him in the fullness of time at a personal level. Thank you very much. Is there anything else? MISS HALL: No thank you my Lord.